Children’s rights implications of three cases involving Israel’s military courts

7th July 2017

The non-governmental organisation, Military Court Watch (MCW), has recently reported on three cases1 concerning children’s rights in the Israeli military court system. This blog examines their potential significance.

The right to access a lawyer

On 22 February 2017, a judge at Ofer military court in the occupied West Bank held that a Palestinian child’s statement, obtained during interrogation, was inadmissible because the child was denied access to a lawyer prior to interrogation.2 The decision in Case 2030/16 is potentially significant because up to 90% of children detained by the Israeli military in the West Bank are interrogated without access to a lawyer, according to evidence collected by MCW.3

The 15-year-old boy is alleged to have been involved in throwing Molotov cocktails at a military sentry point in Hebron in the occupied West Bank in 2015, in an incident where soldiers reportedly shot him in the legs. In October 2016, the case came before Ofer military court for a final hearing. There, the boy’s lawyer challenged the admissibility of a statement given by the boy during interrogation. The primary objection to admissibility was that the boy had been actively prevented from consulting with his lawyer prior to interrogation. It was also argued that the boy was not properly notified of his right to consult with a lawyer and that his parents were not notified of his arrest, as required under Israeli military law.4

Citing Israeli military case law, the judge reiterated that the right to consult with a lawyer during the interrogation stage is a basic right for a number of reasons, including the following:

An interrogation is a stressful experience which can result in false confessions if faced alone, particularly in the case of children.

Access to a lawyer ensures that the interrogation is fair and free from improper coercion.

Access to a lawyer ensures that the accused is aware of his legal rights, including the right against self-incrimination and the right to silence.

The judge referred to the principle that where a statement is obtained improperly during interrogation, the court has a discretion to exclude the statementif doing otherwise would violate the accused’s right to a fair trial.5

In rejecting the admissibility of the child’s statement, the judge noted that the interrogating authorities had ‘blatantly violated’ the defendant’s rights, including his right to counsel during interrogation.6 The judge concluded thatthe ‘illicit conduct of the investigating authorities amounts to a significant violation of the Defendant’s rights to a fair process’ and that theviolation ‘is all the more grave considering the Defendant’s young age’.7

It is, however, rare for Israel’s military courts to scrutinize the interrogation process to the degree shown in this case. The prevalence of plea bargains8 being accepted by children in order to reduce the length of their pre-trial detention means that cases do not usually reach the stage where the admissibility of evidence is reviewed. As a result, breaches of child rights during the interrogation process is likely to continue with little judicial oversight. The denial of bail to child defendants in the majority of cases contravenes Article 37(b) of the Convention on the Rights of the Child, which requires that deprivation of liberty be used ‘only as a measure of last resort’. Until children are only denied their liberty as a measure of last resort, Case 2030/16 is likely to have no effect in the vast majority of cases.

Anonymous and ors v Commander of IDF Forces in Judea and Samaria and ors (2017)

On 27 February, an Israeli law firm filed a petition to Israel’s Supreme Court, seeking an order requiring the production of social welfare reports at every bail hearing involving a child in the Israeli military courts.9 As aforementioned, the overwhelming majority of Palestinian children are denied bail and are held in custody pending the conclusion of their cases.10 Without social welfare reports, military judges have little evidence to inform their decision on whether to grant bail. As a result, most children are detained until the outcome of their case.11

The petition claims that the lack of social welfare reports violates due process rights and Israel’s obligations under the Convention on the Rights of the Child (Convention).12 Article 3 (1) of the Convention stipulates that in all actions concerning children, including those undertaken by courts of law, the best interests of the child shall be a primary consideration.13 The failure to provide social welfare reports when children’s liberty is at stake appears to breach this provision.

Israeli military law makes no provision for the production of social welfare reports relating to Palestinian children at bail hearings, whereas Israeli civilian law mandates their production in every case involving a child, including in cases involving Israeli children living in settlements in the West Bank.14 The petition notes that the current situation amounts to discrimination based on national identity. A hearing of the petition is expected in the latter half of 2017.15

Military Prosecution v A. and another (Case 1469/17 Case 1506/17)

In April, the Israeli Military Appeals Court issued a judgment identifying numerous shortcomings in the manner in which two Palestinian children were interrogated.16 The judgment followed an appeal against the decision to refuse bail to one of the boys.17 The Court identified shortcomings included discrimination based on race or national identity; the use of threats and verbal abuse during interrogation; the absence of a parent during interrogation; the failure to permit the children to consult with a lawyer of their choice prior to interrogation; the failure to administer a caution; the use of handcuffs for many hours during interrogation with no apparent justification; serious shortcomings in the way interrogations were recorded, including a failure to record substantial parts of the interrogations and ‘large’ discrepancies between police notes and video recordings of what was said during interrogation.18

International juvenile justice standards prohibit degrading treatment and emphasise that the best interests of the child shall be a primary consideration in all actions concerning children. In accordance with these standards, UNICEF has noted that all children in contact with judicial systems should be treated with dignity and respect at all times. However, much of the mistreatment detailed in the judgment is widespread within Israel’s military detention process.20 In 2016, 41% of children reported being verbally abused during arrest, transfer, interrogation and or detention. In the same year, 94% reported being restrained with plastic ties following their detention by the military.21 In most cases the ties remain in place for many hours.22 The overwhelming majority of children continue to be denied access to a lawyer prior to, or during, their interrogation.23 Most children continue to be interrogated in the absence of a parent.24

International juvenile justice standards demand independent scrutiny of the methods of an interrogation.25 The presence of a lawyer of the suspect’s choice can provide that scrutiny. The presence of a lawyer might also go some way to addressing the above-mentioned failure to record parts of the interrogations and the ‘large’ discrepancies between what was said during interrogation and police notes of what was said.26

Before the outcome of the appeal had been decided, the boys accepted plea bargains, making an examination of the admissibility of the boys’ statements and confessions unnecessary. Although the judge criticised the conduct of the police, he did not go as far as to conclude that the shortcomings would have made the minors’ statements and confessions inadmissible.27 As a result, the case provides little incentive for interrogators to comply with the regulations for conducting interrogations.28 MCW argues that without effective incentives, such as the automatic exclusion of improperly obtained evidence, it is improbable that the shortcomings identified by the judge in this case will be satisfactorily resolved in accordance with the rule of law.29

The breaches of child rights highlighted above occurred in the context of hundreds of children being processed each year through a system in which the ill-treatment of children remains ‘widespread, systematic and institutionalised’, as concluded by UNICEF in its significant 2013 report on this issue.303132 The military courts have an official conviction rate of over 99%, which strongly indicates that there major are systemic shortcomings in its ability to administer impartial justice. Only full adherence to the rights set out in the Convention on the Rights of the Child will adequately protect children who come into contact with the Israeli military detention system.

30 B’Tselem, ‘Statistics on Palestinian minors in the custody of the Israeli security forces’, 16 January 2017 http://www.btselem.org/statistics/minors_in_custody

31 UNICEF, ‘Children in Israeli Military Detention Observations and Recommendations’, February 2013 https://www.unicef.org/oPt/UNICEF_oPt_Children_in_Israeli_Military_Detention_Observations_and_Recommendations_-_6_March_2013.pdf

32 Lawyers for Palestinian Human Rights, ‘UNICEF’s update on the treatment of children in military detention’, 21 March 2015 https://lphr.org.uk/blog/unicefs-update-on-the-treatment-of-children-in-military-detention/

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